Not receiving a lot of attention this week, the City of Los Angeles published guides for businesses to begin to prepare to reopen. is reporting that the guide for restaurants and bars was placed on the City’s website on May 26 (even though the publication date of the guide is May 21).  The guides are for industries that are not yet permitted to reopen, but provide information to prepare for reopening.  These industries include:

The City’s website states that guides for the following industries will be published shortly:

  • Film production
  • Higher education
  • Sports & music venue

The website also provides guides for businesses that have been permitted to reopen, which include:

Restaurants & Bars – Preparation For Dine-in

The guide published for restaurants and bars sets forth similar requirements as other cities and counties.

In regards to employee health, the guidance provides recommendations, including the following:

Employee Health and Personal Hygiene
– Ask employees to confirm (and document confirmation) they have not experienced COVID-19 CDC-defined symptoms, including fever, cough, and shortness of breath, for 14 days prior to return

– Require employees who have COVID-19 CDC-defined symptoms to remain home until they are symptom-free for three days without medication

– If an employee tests positive for COVID-19, inform coworkers and customers if applicable and ensure all other coworkers are tested before returning to work; if testing is not possible inform coworkers that had close contact to self-quarantine and self-monitor for symptoms per public health guidance

– Consider developing a written plan on how to inform coworkers of positive case and how they can get tested / self-quarantine

The guidelines also set forth that restaurants and bars will need to log all employees that come on-premise for purposes of supporting public health contact tracing.

The guidelines also provide some recommendations for employee communications:

  • Communicate frequently to make employees aware of operational changes for health and safety
  • Provide details of the changes to employees, in writing
  • Encourage employees to participate and comply with new work practices
  • Conduct demonstrations and training to introduce new skills to staff before activities officially resume; examples include:
  • How to practice physical distancing/sanitizing at workstations and within dining areas
  • How to follow floor markings in facility
  • How to handle essential interactions with others at work
  • Consider a variety of communication channels and materials, including email, text messages, posters/digital displays
  • Consider communications focused on
  • Why the facility is safe and how it is following state guidelines
  • Instructions for how to prepare for arrival
  • Overview of what to expect when returning employees arrive, including new entrance guidelines, supplies, sanitation requirements, capacity limits, etc.

Even during a worldwide pandemic, an employer’s legal requirements and obligations under anti-discrimination, harassment, and retaliation statutes remain in full effect.  Even though this may not be at the top of a business’ list, and given the phased reopening of the economy, employers should take the time to audit their internal policies and processes to ensure compliance with the law.  This article provides a brief overview (and review) of discrimination, harassment and retaliation laws in the workplace.


Anti-Discrimination Law 101: The Legal Basics

The most relevant anti-discrimination federal and state include:

  • Title VII of the Civil Rights Act of 1964
  • The Age Discrimination in Employment Act (ADEA)
  • The California Fair Employment and Housing Act (FEHA)
  • The California Fair Pay Act

But what exactly do these laws prohibit?  Under these statutes, it is unlawful to discriminate against individuals belonging to a certain protected class with respect to any term, condition, or privilege of employment – including hiring, firing, promotion, job assignments, etc.  “Protected classes” can include: age, marital status, mental or physical disability, race and color, religion, sex/gender and national origin.

California law is more expansive than federal law, as it prohibits discrimination on the basis of “perception” or “association.”  In other words, even if an employee is not actually a member of the protected class, but is perceived as being a member of or associated with one or more of these protected classes, employers must not engage in discriminatory actions.

Note that, even if a business’ action or decision may be neutral on their face, they may still violate anti-discrimination laws if they have a disparate impact upon execution.  Thus, employers should pay close attention to not only its policies and practices as written, but also in practice.

Remember: As a California employer, you are obligated to take all reasonable steps to not only prevent discrimination from occurring in the workplace, but also to promptly correct any discriminatory conduct.

COVID-19 Implications

Having a basic understanding of discrimination laws, how might this relate to COVID-19 in the workplace?

Discrimination may come up in three main situations: rehiring practices, leaves of absence, and testing in the workplace.

Rehiring: Be Objective

With respect to rehiring, it is pivotal that employers develop and use an objective, non-discriminatory and legitimate rehiring plan or criteria.  The “basis” or “bases” in which the employer will be deciding which employees to rehire may have severe implications and run afoul of anti-discrimination laws.

For example, the Center for Disease Control may deem employees who are 65 years or older as Higher Risk.  Yet, this should not -in and of itself- automatically disqualify those older employees from being considered for rehiring.  That would be a clear example of age discrimination. Likewise, an individual’s race or national origin (e.g., Asian or Asian American) should have no bearing in an employer’s rehiring decisions.

Leaves of Absence: Be Consistent

Given the pandemic, it is inevitable that many employees will submit requests for leave either under the Families First Coronavirus Response Act (FFCRA) or other state or local paid sick leave laws.  It is imperative that employers administer and handle all requests in a non-discriminatory manner.  Regardless of whether the requests are granted or denied, employers must be consistent.  An employee’s race, gender, age or any other protected category should have no bearing in a company’s decision of either granting or denying the request.

Testing in the Workplace: Do Not Single Out Employees

As testing methods for COVID-19 become more readily available and a more common practice in the workplace, thread with caution.  Ensure that certain employees (e.g., older or disabled employees) are not being singled out.  Do not require such employees to undergo additional testing or other safety precautions, which are not required of other employees.


Harassment Law 101: The Legal Basics

Turning to harassment, both Title VII of the Civil Rights Act and the FEHA prohibit employers from harassing workers on the basis of certain protected traits.  Note that harassment is not just sexual harassment, but can also be harassment on the basis of race, religion, national origin, or medical condition among others.  Harassment. Involves conduct that is so frequent or severe that it creates a hostile or offensive work environment.

Consequently, harassment can take a number of different forms including:

  • Unwanted sexual advances.
  • Denigrating jokes.
  • Insulting comments.
  • Any other hostile at that may interfere with the performance of the employee’s job duties.

Under California law, an employer is liable for co-worker harassment if the employer knew –or should have known–about the harassing conduct and failed to take immediate and appropriate action.  Moreover, employers are liable for harassment committed by supervisors regardless of whether the employer knew or should have known of the conduct (this is known as strict liability).

Remember: As a California employer, you have an affirmative duty to take reasonable steps necessary to prevent and to promptly correct harassing conduct in the workplace.

COVID-19 Implications: Bullying and Inappropriate Jokes

COVID-19 may provide fertile ground for bullying or inappropriate jokes in the workplace, as there may exist a social stigma against Asian or Asian-American employees.  It is possible that co-workers may refer (even if jokingly, consciously or unconsciously) to coronavirus as the “Chinese Virus” or the “Kung Flu.”  This could very well constitute unlawful harassment.  Or perhaps, employees or supervisors may harass Asian or Asian-American employees by telling them that they should not come to work because they are the “virus carriers.”

So, what should employers do to avoid these situations?

Employers should use this time to revisit the company’s anti-harassment policies, as well as to ensure that effective complaint mechanisms (for reporting harassment or other issues in the workplace) are well-established.

While anti-harassment training may not be at the top of an employer’s to-do list, it may be worth considering providing a refresher training course for managers and employees.  Remember that California employers with 50 or more employees must train supervisors and employees every 2 years).

Taking these obligations and recommendations seriously will prevent unlawful conduct from occurring, help your company avoid or decrease liability and make the workplace a comfortable environment for everyone.


Retaliation Law 101: The Legal Basics

Both federal and state laws protect employees and applicants from employer retaliation.  At its core, retaliation involves an adverse action taken against an employee who is engaging in a protected activity such as:

  • Opposing a practice that is unlawful under the law;
  • Filing a charge or participating in any manner in any investigation or proceeding under an anti-discrimination statute;
  • Participating in activities to further the enforcement of employment discrimination laws;
  • Disclosing information to a government or law enforcement agency that the employee believes is a violation of state or federal statute. See Labor Code sections 98.6 and 1102.5.

COVID-19 Implications

The interplay between retaliation and COVID-19 could manifest in situations where the employee raises a good-faith complaint regarding the workplace, files a complaint with a law or health enforcement agency, and when an employee requests a leave of absence.

Employee Complaints: Reporting In and Out

On the one hand, it is possible that an employee may raise an internal complaint with the company in relation to personal protective equipment (PPE) or other similar safety issues. Indeed, it is plausible that an employee may complaint because the company is not providing sufficient PPE or because whatever PPE is being provided is simply ineffective.   Likewise, the employee may raise concerns with how the employer is handling sanitization and disinfecting protocols in the workplace.  Alternatively, the employee may “blow the whistle” and report out an employer for failing to implement county or city health department directives for addressing COVID-19 concerns in the workplace.  Regardless of who the complaint is being made to, employers must refrain from retaliating against the employee.  Instead, take these complaints seriously and work with the employee or agency in addressing the underlying issues.

Leaves of Absence: Watch for Anti-Retaliation Provisions

As previously discussed, employees will continue to request leave of absence for COVID-19 related reasons.   Therefore, employers must be aware that leave of absence laws contain their own anti-retaliation provisions.  Indeed, the FFCRA, traditional FMLA, and California paid sick leave all explicitly prohibit an employer from retaliating against an employee for exercising their right under these leave laws.  Protected leave equals retaliation outlawed.

Employers need not only adapt to the “new normal,” but must continue to comply with traditional, pre-existing legal norms.  This article described some of the most salient issues that employers will be faced in the foreseeable future.  As always, employers should consult with legal counsel in handling their business-specific circumstances.

It’s a daunting task to keep current with the constantly evolving, and sometimes conflicting, health agency guidance on workplace safety amid COVID-19. A good example is the CDC guidance on what to do when workers come in close contact with an individual who has a confirmed or suspected case of the virus. Initially, the CDC recommended that potentially exposed workers should self-quarantine for 14 days. The CDC then recommended that potentially exposed workers who remained asymptomatic could remain at work so long as additional precautions were taken, like temperature checks and wearing face coverings. The CDC is now distinguishing between critical infrastructure workers and “other employees.” It recommends that other workers who have been potentially exposed should self-isolate for 14 days, and cautions that home isolation may still be the best option even for essential workers.

The CDC’s comprehensive FAQs for business is at To help you stay on top of this evolving maze of CDC guidance, below is the current CDC guidance on when employees who tested positive for COVID-19 can return to work, and what to do when an employee has been potentially exposed to COVID-19.


Employees with COVID-19 should not return to work until they meet the CDC’s criteria to discontinue home isolation, and have consulted with a healthcare provider and state or local health department. This criteria is dependent on whether the employee has been tested or not, and has symptoms.

Employees with COVID-19 who have stayed home can return to work under the following conditions:

If they have not had a test to determine if they are still contagious, they can return to work after these three things have happened:

  1. They have had no fever for at least 72 hours (without the use of medicine that reduces fevers)
  2. other symptoms have improved (for example, symptoms of cough or shortness of breath have improved)
  3. at least 10 days have passed since their symptoms first appeared

If they have had a test to determine if they are still contagious, they can return to work after these three things have happened:

  1. They no longer have a fever (without the use of medicine that reduces fevers)
  2. other symptoms have improved (for example, symptoms of cough or shortness of breath have improved)
  3. they have received two negative tests in a row, at least 24 hours apart. Their doctor will follow CDC guidelines.

Employees who DID NOT have COVID-19 symptoms, but tested positive and have stayed home can return to work under the following conditions:

If they have not had a test to determine if they are still contagious, they can return to work after these two things have happened:

  1. At least 10 days have passed since the date of their first positive test
  2. they continue to have no symptoms (no cough or shortness of breath) since the test.

If they have had a test to determine if they are still contagious, they can return to work after:

  1. They have received two negative tests in a row, at least 24 hours apart. Their doctor will follow CDC guidelines.
  2. If they develop symptoms, follow guidance above for people with COVID19 symptoms.


Critical infrastructure workers who had been in close proximity to confirmed or suspected individuals with COVID-19 may be permitted to remain at work provided they remain symptom-free and follow the below additional precautions. A potential exposure means being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19. The timeframe for having contact with an individual includes the period of time of 48 hours before the individual became symptomatic.

  • Pre-Screen: Employers should measure the employee’s temperature (ideally before entering the worksite) and assess symptoms prior to them starting work.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean workspaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

If the employee becomes sick during the day, they should be sent home immediately. Surfaces in their workspace should be cleaned and disinfected. Information on persons who had contact with the ill employee during the time the employee had symptoms and 2 days prior to symptoms should be compiled. Others at the worksite with close contact within 6 feet of the employee during this time would be considered exposed.

Even this guidance comes with a recent caveat by the CDC, it “should not be misinterpreted as always being the first or most appropriate option to pursue in managing critical work tasks” and “home isolation may still be the most viable option for exposed workers.”


Non-critical infrastructure employees who have been potentially exposed and have symptoms of COVID-19 should self-isolate and follow the CDC recommended steps on what to do if you are sick.

Non-critical infrastructure employees who have been potentially exposed and do not have symptoms should remain at home or in a comparable setting, practice social distancing and self-monitor for symptoms for 14 days.

According to the CDC, employees may have been exposed if they are a “close contact” of someone who infected, which is defined as being within approximately 6 feet of a person with COVID-19 for a prolonged period of time (approximately 10 minutes or more).

As more businesses are reopening, the takeaway from this fluid and ever-changing guidance: frequently monitor for updates on what to do with confirmed and suspected cases, and implement new guidance whenever your operations permit. The CDC advises that most workplaces should follow the Public Health Recommendations for Community-Related Exposure, and critical infrastructure workplaces should follow the guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.

A common question posed to me this past week was what types of lawsuits should employers be concerned about once the economy begins to reopen.  I figured that the California economy is slowly reopening, so I should start writing my Friday’s Five lists again – so here are the top five areas of concern I see for California employers post-coronavirus:

1. Leave issues

There are a patchwork of paid leave laws that California employers must be very careful in navigating.  For example, here are a few federal, state and local leave laws that could apply to an employer in Los Angeles:

2. Retaliation claims

Labor Code section 1102.5 protects employees against retaliation for disclosing information, or because an employer believes an employee has disclosed information, to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has the authority to investigate, discover, or correct a violation where an employee reasonably believes that the information discloses a violation of a state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. The key item to understand here is that the employee only had to have a reasonable belief that the disclosure discloses a violation of federal, state or local law or regulation.

3. OSHA/Cal-OSHA/EEOC/DFEH worksite investigations

Employers must comply with requirements to provide safe work environments:

    • OSHA:
    • Cal-OSHA guidance on requirements to protect workers from coronavirus:

OSHA provided revised guidelines on May 19, 2020 setting forth the following requirements for recording of COVID-19 workplace cases:

OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under OSHA’s recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

Also, remember to have your Injury and Illness Prevention Program (IIPP) in place.

4. Wage and hour issues

The following wage and hour issues could be common types of claims following the recovery from the coronavirus pandemic:

5. Disability discrimination/reasonable accommodations

Fair Employment and Housing Act (FEHA) provides it is unlawful to discriminate against an employee on the basis of “physical disability.” (Gov. Code, § 12940, subd. (a).)  In addition to making it illegal to discriminate on the basis of disability, the FEHA makes it unlawful “to fail to make reasonable accommodation for the known physical . . . disability of an . . . employee.” (§ 12940, subd. (m)(1).)  Finally, the FEHA prohibits an employer from harassing an employee “because of . . . physical disability.” (§ 12940, subd. (j)(1).)  Employers must consider reasonable accommodations for high risk employees, such as for employee with underlying impairments, 65 years old or older, possibly for pregnancy-related impairments.  A reasonable accommodation is not require if employee is simply afraid to return to work, is on unemployment, or who is caring for someone else who is at high risk (but be careful on this issues, as it could trigger other leave laws, such as California’s paid sick leave laws or the FFCRA).

UPDATE:  As of May 21, 2020, the State has approved San Diego County’s expanded reopening variance. Now that the County has been given the green light, restaurants and retails will begin to reopen for in-person dining and services.  Businesses should closely and thoroughly review the County’s guidelines.  The County’s attestation documents (including its Safe Reopening Plan, Restaurant Operating Protocol, and Industry Guidance for Retail) can be found here.


Earlier this week, the San Diego County supervisors approved the submission of the County’s regional variance to State officials.  If and when approved, the variance would allow the County to move ahead and more rapidly reopen businesses within the County.  Likewise, it would also allow in-person customers at restaurants and retail businesses.  As part of its “safer reopening,” and in anticipation of the variance being granted, San Diego has already issued specific guidelines and guidance for restaurants, including a Safe Onsite Dining Plan for Restaurants and a COVID-19 Restaurant Operating Protocol.

Here is what restaurants need to know.

COVID-19 Safe Onsite Dining Plan for Restaurants & Restaurant Operating Protocol

San Diego County had previously issued a Safe Reopening Plan for retail businesses.  Unsurprisingly, the COVID-19 Safe Onsite Dining Plan for Restaurants (the “Dining Plan”) and Restaurant Operating Protocol are fairly similar, but contain restaurant-specific guidelines.

The Dining Plan and Restaurant Operating Protocol include five (5) major measures for dine-in restaurants: employee health, social distancing, education for the dining public, measures to increase sanitation and disinfection, and recommended additional measures.  Except for the last one, all measures are mandatory, so restaurants should thoroughly review both the Dining Plan and the Restaurant Operating Protocol.

Some of the key items under each measure are discussed below.

Employee Health

As part of safeguarding employee health, businesses must conduct thermal or temperature scans of employees on a daily basis, as well as conduct health screening of employee prior to the beginning of each shift.

With respect to face coverings, all employees must wear them if they interact with the public and when social distancing from co-workers is not feasible.

Businesses must provide a copy of their Restaurant Operating Protocols and ensure that all employees have read and understand the San Diego County’s COVID-19 Fact Sheet.

Businesses must require employees to avoid handshakes or similar physical greetings.

Social Distancing

Restaurants should be fairly familiar with social distancing measures by now.  However, the Dining Plan provides further and more specific guidelines.

All tables must be 6-feet apart, and if they cannot be moved (for example, if they are bolted), then restaurants must install a barrier or partition to separate them.

Now, restaurants will also have to be mindful of how many people can sit at a single table.  Indeed, single-table usage can be limited to household units.  While the Dining Plan also provides that patrons who have asked to be seated together may do so at a single table, it is unclear as to whether there is a maximum number of people allowed.  For example, the Dining Plan does not address what to do when dealing with a party of 10 or more people.

Education for the Dining Public

Is this a “new” set of measures?  Not quite.

This measure requires restaurants to continue to post signs reminding customers to maintain social distancing, wash their hands, and stay home if exhibiting COVID-19 symptoms.  The Restaurant Operating Protocol must be also be posted in a visible location for customers.

But note, when not seated at their table, customers must wear face coverings.

Sanitation and Disinfection

In short, the Dining Plan prohibits:

  • The use of food items that can be touched by multiple customers or shared between tables (e.g., condiment bottles, saltshakers, etc.).
  • Self-service buffets, salad bars, or soda machines.
  • Tableside food preparation.

If single-service or single-use items (such as menus or disposable utensils) are not or cannot be provided, businesses must ensure that they are disinfected (in the case of menus), or washed, rinsed and sanitized (in the case of silverware).

Restaurants must also designate a “team member” per shift to oversee or enforce any additional sanitation and disinfection procedures.

Recommended Additional Measures (Non-Mandatory)

The Dining Plan also recommends optional measures that restaurants should consider implementing.  These include:

  • Usage of non-person-to-person payment systems (e.g., touchless).
  • Implementing a reservation process in order to prevent gatherings and promote social distancing.
  • One Party, One Server: to the extent possible, only one employee should serve an individual party.
  • In addition to handwashing, use disposable gloves when conducting employee health screenings, handling items contaminated by body fluids, touching items used by customers or handling trash bags (Note: Based on this, it can be inferred that disposable gloves are not required).

Other County Guidance

San Diego County’s Department of Environmental Health, Food and Housing Division, had also previously issued COVID-19 Guidance for Food Facility Re-Openings.  This guidance was issued to prevent food safety risks.  The Guidance can be found here.

Again, even though the State has not granted the County’s variance, restaurants should be proactive, review the guidance, and ensure compliance with all new requirements.  This will ensure that businesses are ready to hit the ground running.  Happy dining!

Today, May 12, 2020, Governor Newsom announced guidelines for businesses, including restaurants, to continue to open under the “expanded” Phase 2 in California.

Early Stage 2 business that were permitted to reopen on May 8 included:


  • Curb-side Retail
  • Manufacturers
  • Logistics
  • Childcare for those outside of the essential workforce


Expanded Stage 2 businesses that will be permitted to reopen if the county that they operate in obtain a variance from the state that would permit businesses to reopen include:


  • Office-based businesses (telework remains strongly encouraged)
  • Select services: car washes, pet grooming, and landscape gardening
  • Destination retail, including shopping malls and swap meets
  • Dine-in restaurants (other amenities, like bars or gaming areas, are not permitted in Stage 2)
  • Outdoor museums, and open gallery spaces and other public spaces with modifications
  • Schools with modifications


As of today, only two counties, Butte County and El Dorado County, have obtained the variance to permit expanded Stage 2 businesses to reopen in those counties.

The state’s guidance for dine-in restaurants is here:

The state’s general checklist for dine-in restaurants is here:


Businesses getting ready to re-open need to consider yet another item on the re-opening checklist: an Injury, Illness and Prevention Plan (IIPP) to address COVID-19. Title 8 of the California Code of Regulations section 3203 requires every employer to develop a written IIPP that protects employees from workplace hazards. Most California workplaces now must consider COVID-19 to be a workplace hazard that employees are exposed to.

Fortunately, the California Department of Industrial Relations Division of Occupational Safety & Health (DOSH), or Cal/OSHA, provides guidance and easy to modify forms and checklists that can help employers create and develop an IIPP that addresses COVID-19:

Step-By-Step Guidance On How To Create Your Own Written IIPP Customized To Your Workplace:

Sample IIPP Forms and Checklists:

Cal/OSHA’s Consultation eTools with Action Kits:

Cal/OSHA’s Guide to Developing Your Workplace Injury and Illness Prevention Program With Checklists For Self-Inspection, describes the employers’ responsibilities in establishing, implementing, maintaining, an IIP Program:

An IIPP has 8 required elements:

  1. Responsibility
  2. Compliance
  3. Communication
  4. Hazard Assessment
  5. Accident/Exposure Investigation
  6. Hazard Correction
  7. Training and Instruction
  8. Recordkeeping

An effective IIPP is not just a paper program. For your IIPP to be effective, Cal/OSHA identifies four items to put into practice in your workplace:

  • Fully involve all employees, supervisors, and management
  • Identify the specific workplace hazards employees are exposed to
  • Correct identified hazards in an appropriate and timely manner
  • Provide effective training

Your workplace assessment needs to identify the workplace hazards posed by COVID-19 and measures to prevent or reduce the spread of the virus based on your operations. Basic measures that all employers should asses and implement are: cleaning and disinfecting; good hand hygiene; when and what PPE is needed or appropriate; physical distancing; and training employees on COVID-19 infection prevention methods. Implementing your prevention measures could incorporate CDC, OSHA, state and local guidelines and orders. Good sources to incorporate into the written IIP Plan include:

Cal/OSHA Guidance on Requirements to Protect Workers from Coronavirus:

Federal OSHA Guidance on Preparing Workplaces for COVID-19 publication

Identifies different Coronavirus-related risk categories for workers, including higher-risk industries, and provides specific guidance for workplace safety for those industries.

Los Angeles County Social Distancing Protocol:

As with everything related to this pandemic, be vigilant in keeping up-to-date on evolving rules and guidance, and modify your IIPP, as needed. We will continue to provide updates on COVID-19 issues impacting the workplace.

In an interesting and surprising turn of events, the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination laws in the workplace, removed the Frequently Asked Questions section from its website. The FAQ provided guidance on accommodating workers with medical conditions, issues of harassment and retaliation, and a “Return to Work” due to the movement towards opening the economy post-pandemic.

The EEOC is currently revising its previous guidance to ensure greater clarity and to avoid any misinterpretation by employers and the public-at-large.  As such, employers should monitor and check the EEOC’s website constantly, as the updated guidance could be published rather soon.  As of now, the EEOC’s website still provides information and Q&A section with respect to these issues, which employers can review here.

The EEOC has also consolidated its COVID-19 resources under a single page, which can be accessed here. As employers continue to navigate these murky waters, it is imperative that they remain attentive to all local, state and federal developments in dealing with these issues.  The better informed businesses are, the better prepared they will be when they decide to re-open.

A frequent question asked at our webinars is what liability employers might face from claims that employees contracted COVID-19 at work. Governor Newsom provided clarity on that question today.

Newsom issued Executive Order N-62-20, creating a rebuttable presumption that an employee’s COVID-19-related illness arose out of the course of employment for workers’ compensation purposes if the employee tests positive or is diagnosed “within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.” The presumption does not apply if the employee worked from home.

To qualify, the employee must either (1) test positive for COVID-19 within 14 days after performing work; or (2) be diagnosed with COVID-19 by a licensed physician within 14 days after performing work and have that diagnosis confirmed by further testing within 30 days of the diagnosis. Additionally, the date of injury must occur between March 19, 2020, and July 5, 2020.

For current employees, the practical reality of this Executive Order is that any test-confirmed COVID-19 illness will be presumptively compensable by workers’ compensation.

The Executive Order provides that the presumption “is disputable and may be controverted by other evidence.” However, if a claim is not rejected within 30 days of filing, the presumption can only be rebutted by evidence discovered subsequent to the 30-day period.

Employees claiming COVID-19-related illness are eligible for all workers’ compensation benefits, including “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” There is no waiting period for temporary disability benefits, but an employee entitled to COVID-19 paid sick leave must exhaust that paid leave first.

Governor Newsom’s messaging on reopening California has emphasized a need to created an “Expanded Workforce Safety Net.”  This new Executive Order is a significant step in that direction.

Today, May 5, 2020, San Diego County Board of Supervisors unanimously agreed to adopt a framework developed by the Responsible COVID-19 Economic Reopening Advisory Group on how businesses should approach reopening.  The framework is made available on the County’s website here. 


The plan offers guidelines for businesses on how to protect employees and customers.  The County states businesses can use the plan to prepare for when the state permits certain businesses to open.  The County did not provide a timeline for when businesses can reopen, but have deferred to the Governor’s plan.  The County’s website informs businesses to check back for more information on May 8, 2020.  The County recommended businesses permitted to reopen in Phase 2 should prepare the plan.  If permitted to reopen, businesses will be required to post the plan, but will not be required to submit it to the County.